Consent Decree

Consent decrees in educational disputes are negotiated equitable agreements between plaintiffs and defendants in elementary and secondary school settings and in higher education. They involve a wide array of issues, such as desegregation and special education, wherein courts accept the agreed-on settlements. In consent decrees in education, defendants, usually school boards or other educational entities, agree to discontinue specified illegal activities such as segregation based on race, disability, or gender. In fact, consent decrees are not so much judicial orders but rather more properly judicially approved agreements between the parties that are binding only on the parties to the agreement.

Following Brown v. Board of Education of Topeka (1954), wherein the Supreme Court struck down segregation in public schools based on race as violating the Equal Protection Clause of the Fourteenth Amendment, many school systems entered into judicially supervised consent decrees. These consent decrees sough to compel school boards and their officials to desegregate their districts as federal trial courts retained jurisdiction over the disputes until they fully complied with the terms of their agreements. Moreover, these decrees remained viable despite massive resistance, especially in the South. To this end, major Supreme Court cases on school desegregation, such as Swann v. Charlotte-Mecklenburg Board of Education (1971), Keyes v. School District No. 1, Denver, Colorado (1973); Board of Education of Oklahoma City Public Schools v. Dowell (1991), and Freeman v. Pitts (1992), all involved consent decrees, some of which were subject to judicial oversight for more than two decades. Hundreds of desegregation cases remain under the control of federal trial courts.

Consent decrees have also played a major role in the development of special education. In perhaps the most notable early dispute, Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania (1971), parents challenged segregated programs, practices, and policies that deprived their children of equal educational opportunities under the Fourteenth Amendment’s Due Process and Equal Protection clauses. When officials representing the commonwealth agreed to abide by the terms proposed by the plaintiffs, the court’s granting its imprimatur to the agreement that the parties reached helped to pave the way for equitable treatment of children (and adults) with disabilities in education as well as in wider society.

Disputes in higher education have also involved consent decrees, even if courts have not always accepted their content. For example, in Adams v. Califano (1977), the federal trial court in Washington, D.C., rejected a proposed plan involving six states. The court refused to accept the plan, not only because it failed to comply with desegregation plans for Black schools in the states’ systems of higher education as mandated by the Department of Health, Education, and Welfare but also because it did not adequately increase Black enrollment at public White institutions of higher education. Further, although the Ninth Circuit rejected a consent decree that was designed to provide gender equity in interscholastic sports pursuant to Title IX in California’s state university system (Neal v. Board of Trustees of California State Universities, 1999), the outcome reveals that such agreements are often at the heart of attempts to reach decisions via alternative dispute resolution.

In sum, consent decrees can be viewed as worthwhile alternative tools in helping to avoid costly, often protracted, litigation. Moreover, even though adequate judicial monitoring to implement consent decrees can be costly, they can be a useful strategy to help resolve contentious disagreements in a manner that is still less costly and typically less confrontational, resulting in benefits for both plaintiffs and defendants.